The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1887-11-22

risk" as a matter Of fact did not as
sumo the care of the animals, but
this was left TO men specially en-
gagged for this purpose by the Con-
Siguee. son deck at owners risk"
means that the ship is not response
Bile for loSS or damage, incident 10
the hogs being ON deck and not in
the hold. s'Freight payable dead
or alive" does not exempt the ship
from the consequence of the Captain
or officers negligence or lniScon-
duct, but the vessel is responsible
for the negligence or misconduct Of
its Captain and officers. For in
stance, if by placing too heavy mer-
chandiSe ON the pen it had eaved in
and killed some of the hogs, the YES
sci would be liable for their value.
But if the pigs had died on account
of the men in charge not giving
them water, the loss would not fall
on the ship. l think the providing
of air was a matter for the Con-
Signee's agents TO look after. How
could the Captain be supposed 10 be
acquainted with their needs in this
respect any more than with their
wants as to food or water, or any
other condition affecting their
health?
But if the Captain of the vessel,
his attention having been called TO
the necessity of greater ventilation
in order TO saveE the lives of the
hogs, should, when ii WAS q reason
able request, prereHt this being OBJ
tanned, it might be such gross negli-
gsnee rs would render the ship
liable for the loss thus oeeasioned.
1t is srgued by libellant's counsel
that this was the state of facts on
the Forest Queen.
Mr.. Wendell, the ConSignee's
agent in charge OF the hogs, says:
. 1 spoke to the Captain, and asked
him If there WAS any way some air
could bs made as the hogs were dy-
ing off 50 fast l was afraid l would
have none left when we got to Ho-
nolulu." He answered, ssWhat
can do? 1 have no place TO put the
freight"
Captain does not appear 10 have
been examined on this point. The
matter seems to have been dropped
with this one remark by Mr.. Wen
del. lie did not object to the mer-
chandi>e being piled on the pens
when it was going on board, but his
fear was that there was not sutfi-
cient superficial space for the hogs
in the pens and his remonstrances
were all directed 10 this.
1t seems to me that it was not
certainly and sharply brought TO the
Captains notice that the pigs were
were being suffocated.
He had brought down 80 for Mr..
Burke on previous voyage and lost
but IS. The Captain says he could
not tell what the hogs in question
died Of. The pens were made to
suit the shipper and alterations
could be made to his satisfaction.
The captain suggested 10 Mr..
Wendell that he ought to have more
partitions 50 a. to lessen the number
Of hogs in each division and pre-
sumabIy lessen the damage by their
erowding on. to and injuring each
other; and more partitions were put
in by Mr.. Wendell on the voyage
down. [ cannot see why Mr.. Wen
del did not take off some of the
boards from the sides Of the pens
when he found that the hogs
needed more air and that the pota-
toes on the pen could not be moved.
Captain Winding teStileS that Mr..
Burke did 80 on 4 previous voyage.
[ cannot escape the conviction that
1Ir. Wendell himself did not at the
time ascribe the death of the hogs
to want of ventilation or he veuId
have been mole vigorous in secur-
ing more air Tor them.
On the whole case I do not find
that the loss Of the hogs was occa-
stoned by the negligence Of those IN
charge Of the vessel and therefore
dismiss the libel
P. Neumann for IibeIIant; z. N.
Hatch for respondent
Honolulu, July ., 1851